Opinion
NO. 14-16-00822-CV
03-29-2018
ANTHONY SIMON, Appellant v. PENTAIR VALVES & CONTROLS US LP AND KELLY SERVICES, INCORPORATED, Appellees
On Appeal from the 334th District Court Harris County, Texas
Trial Court Cause No. 2015-51477
MEMORANDUM OPINION
Appellant Anthony Simon challenges the trial court's grant of no-evidence summary judgment to appellees, Pentair Valves & Controls US LP and Kelly Services, Inc., as to Simon's retaliation and intentional-injury claims. Simon contends the trial court erred in granting the summary judgment motions because he produced enough evidence to show that a genuine issue of material fact existed for each claim. We hold the trial court did not err by granting the appellees' no-evidence motions for summary judgment because Simon failed to produce more than a scintilla of evidence as to the elements challenged as insufficient by appellees in their motions. Specifically, we hold Simon failed to produce sufficient evidence for his retaliation claim because he failed to show that his employment was terminated, or that any termination was causally linked to his filing of a workers' compensation claim. Furthermore, as to his intentional-injury claim, we hold that Simon failed to produce evidence that either of the appellees had the requisite intent to injure him. We therefore affirm the trial court's grant of no-evidence summary judgment to both appellees.
BACKGROUND
Pentair Valves & Controls US LP provides flow management solutions to industries around the world. To assist with increases in work flow or particular projects, Pentair frequently utilizes temporary workers. Kelly Services, Inc. is in the business of, among other things, providing temporary workers to its customers. At the time of the events in this case, Kelly Services was providing Pentair with temporary workers. Kelly Services hired Simon in August 2012 and placed him with Pentair in May 2013, as a temporary worker in one of Pentair's warehouse facilities.
According to medical records and Cheryl Davis, a staffing agent at Kelly Services during the time, Simon became ill and broke out in a skin rash due to what Simon described as contact with contaminated crates in Pentair's warehouse. As a result, Simon filed a workers' compensation claim and was given medical treatment. Simon's treating physician diagnosed him with "contact dermatitis and other eczema" from an "unspecified cause." Simon was prescribed medication and told to have "no contact with other people until all rashes [were dried] out and no more new rash[es] appear[ed]." According to Theresa Borzik, a claims specialist with Kelly Services' workers' compensation insurer, Simon was cleared to return to work on May 17, because Simon had reached "maximum medical improvement." He was cleared by Kelly Services to return to the same work he had been doing before. Simon continued to present himself for follow-up medical appointments, alleging re-exposure, and received additional treatment between May 28 and June 17, 2013, as a result. In June, Simon's treatment ended and he was cleared to return to work with no restrictions; in July, his workers' compensation claim was closed.
Simon continued to work at Pentair's facility in July and August, where he worked alongside other temporary workers, including Spencer Robertson. In September, Simon alleged he sustained an injury while working and filed another workers' compensation claim; the medical records indicate this injury was a bite on the arm caused by a nonvenomous insect. At this time, Simon was given medicine and restricted to minimal use of his right arm for a few days. A month later, in November, Simon reported another injury. The diagnosis was another nonvenomous insect bite to his arm. The medical report indicated that no medication was needed because Simon had reached "maximum medical improvement." Simon continued to work at Pentair's facility for a few more weeks, at which point he was informed that he would no longer be needed at Pentair. Simon claims he was terminated in December 2013, but both appellees claim he ceased working at Pentair in November 2013, because Pentair's temporary assignment was completed. Kelly Services later placed Simon with another company as a temporary employee, where he remained until June 2014 when he was hired on a permanent basis.
Appellees do not agree when Simon left Pentair: Kelly Services lists November 15 as Simon's last date while Pentair lists November 30.
In September 2015, Simon sued both Pentair and Kelly Services, asserting multiple claims. In response, both appellees filed traditional motions for summary judgment as to Simon's claims based on the exclusive-remedy provision of the Texas Workers' Compensation Act ("TWCA"). After the trial court granted the motions, Simon filed his second and third amended petitions, alleging retaliatory discharge and an intentional tort. Simon disputed the reason for his dismissal from Pentair and contended he was retaliated against because of his workers' compensation claims, in violation of the TWCA. Simon also contended he was intentionally injured by appellees because after his first outbreak, they knew with substantial certainty that he would be injured from continuing to work with moldy crates. As alleged by Simon, appellees forced him to continue working with the crates anyway, causing his illness to worsen to such a degree that he had to be hospitalized.
Each appellee filed a separate no-evidence motion for summary judgment. As to Simon's retaliation claim, appellees asserted there was no evidence that Simon's employment was (1) terminated or (2) terminated because Simon filed a workers' compensation claim. As to Simon's intentional-tort claim, each of the appellees asserted there was no evidence of any intentional conduct by it. The trial court granted each no-evidence motion for summary judgment as to both of Simon's claims. The trial court also signed orders sustaining objections to Simon's proffered summary judgment evidence. Simon then filed this appeal.
ANALYSIS
Simon contends that the trial court erred when it granted both appellees no-evidence summary judgment on his retaliation and intentional-tort claims. We conclude Simon did not meet his burden of presenting more than a scintilla of probative evidence raising a genuine issue of material fact as to the elements challenged by appellees in their summary judgment motions.
I. Standard of review
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 675-76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). A movant may obtain a no-evidence summary judgment if there is no evidence of one or more essential elements of a claim on which the nonmovant has the burden of proof. Tex. R. Civ. P. 166a(i).
We sustain a no-evidence summary judgment when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the nonmovant produces more than a scintilla of evidence to raise a genuine issue of material fact, the trial court cannot grant a no-evidence summary judgment. Tex. R. Civ. P. 166a(i). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of the vital fact. Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
II. The trial court did not err by granting appellees no-evidence summary judgment as to Simon's retaliation claim.
Under the Texas Workers' Compensation Act, an employee may not be "discharge[d] or in any other manner discriminate[d] against . . . because the employee has . . . filed a workers' compensation claim in good faith." Tex. Lab. Code Ann. § 451.001(1) (West 2015). If an employer discharges an employee in violation of the TWCA, the employer may be liable for damages incurred and the employee may be entitled to reinstatement of the former position. Id. § 451.002(a), (b). The burden of proof is on the employee. Id. § 451.002(c). To prove a retaliatory discharge for filing a workers' compensation claim, the plaintiff must make a prima facie showing that (1) the plaintiff was an employee; (2) the plaintiff filed a workers' compensation claim in good faith; (3) the defendant discharged or discriminated against the plaintiff ; (4) absent the filing of the claim, the discharge or discrimination would not have occurred when it did; and (5) the plaintiff exhausted any applicable administrative remedies. See id. §§ 410.251, 451.001; Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
An employee does not have to prove that the discharge was "solely because of [the] workers' compensation claim," but must "establish the 'causal connection' between [the] discharge and the filing of a workers' compensation claim." Cont'l Coffee, 937 S.W.2d at 450. "Circumstantial evidence, and the reasonable inferences from such evidence, can prove the causal connection." Id. at 451.
Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false.Id. Once the causal link and other elements are shown, the burden shifts to the employer, who must rebut the alleged discrimination "by showing there was a legitimate reason behind the discharge." Id.; see Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 66-68 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
Simon argues that the trial court improperly granted appellees' no-evidence motions for summary judgment as to his retaliation claim because he produced sufficient evidence to support each element of the claim as to each appellee. Simon contends he established a prima facie case for retaliation in his second amended petition. Appellees contend the trial court correctly granted their summary-judgment motions because Simon failed to meet his burden of producing more than a scintilla of evidence that (1) his employment was terminated, or (2) but for his filing of a claim, his employment would not have been terminated when it was.
The burden was on Simon to establish that his employment was (1) terminated by appellees, and (2) that this termination was caused, at least in part, by Simon's filing of a workers' compensation claim. See Cont'l Coffee, 937 S.W.2d at 450. Appellees argued in their individual motions for no-evidence summary judgment that Simon did not present sufficient evidence as to these elements. Once the appellees filed their individual motions for no-evidence summary judgment, the burden was on Simon "to present evidence raising an issue of material fact" as to both elements identified as insufficient by appellees in their motions. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). As noted above, to produce evidence that raised a genuine issue of material fact, Simon had the burden to present more than a scintilla of evidence. See Tex. R. Civ. P. 166a(i). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Dworschak, 352 S.W.3d at 196.
We agree with the trial court that Simon did not respond with more than a scintilla of evidence to raise a genuine issue of material fact on either of these elements. In his response to appellees' motions for summary judgment, Simon attached the following as evidence: medical records, an affidavit from his fellow temporary worker Spencer Robertson, Simon's own affidavit, and an affidavit from Cheryl Davis of Kelly Services.
Simon attached six exhibits (A-F) to his Second Amended Response to Appellees' No-Evidence Motions for Summary Judgment. Both appellees objected to exhibits A, B, C, and E. The trial court sustained the objections as to exhibits A and C, which were pictures of the crates Simon alleges were covered in mold and an email exchange between him and Davis. Thus, these exhibits were not considered by the trial judge in ruling on the no-evidence motions for summary judgment. Simon does not challenge that ruling on appeal. Therefore, we do not consider these exhibits in our review of the trial court's decision to grant summary judgment. See Brown v. Hensley, 515 S.W.3d 442, 446 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Simon's summary judgment evidence to which no objections were sustained does not raise a genuine issue of material fact that he was terminated or otherwise discriminated against by either appellee. The record shows that Simon was an employee of Kelly Services, that Kelly Services placed him at Pentair as a temporary worker and later reassigned him to other work. In his own brief, Simon acknowledges there is "evidence that Simon's assignment ended and he was placed with another assignment shortly thereafter." Although Simon asks this Court to look to his second amended petition for evidence of his prima facie case, Simon's pleading does not constitute summary judgment evidence.
The Supreme Court of Texas has held that pleadings generally are not competent summary judgment evidence, even if sworn or verified. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Furthermore, at the time of the no-evidence summary judgment hearing, Simon's second amended petition was not attached as an exhibit to his second amended response to the summary judgment motions, and in any event it had been superseded by Simon's third amended petition. See Tex. R. Civ. P. 65.
We hold that even if Simon could show his employment was terminated, Simon failed to produce evidence that the termination was causally connected to his filing of a workers' compensation claim. Simon provided no evidence showing appellees were frustrated with his previous injuries or that they deviated from their established company policies. See Cont'l Coffee, 937 S.W.2d at 450. Nor has Simon shown, for example, that he was treated differently from similarly situated temporary workers or that the stated reason for his alleged discharge was false. See id. As a result, Simon has not presented more than a scintilla of evidence that appellees discharged or otherwise discriminated against him based on his filing of a workers' compensation claim. Accordingly, the trial court did not err in granting no-evidence summary judgment for appellees on Simon's retaliatory-discharge claim. We overrule Simon's first issue. III. The trial court did not err by granting appellees no-evidence summary judgment as to Simon's intentional-tort claim.
In his second issue, Simon argues that the trial court erred by granting appellees' no-evidence motions for summary judgment as to his intentional-tort claim. The exclusive remedy provision of the TWCA does not bar recovery for non-fatal injuries caused by the intentional tort of another. Berkel & Co. Contractors, Inc. v. Lee, —S.W.3d—, 2018 WL 1403545, at *4 (Tex. App.—Houston [14th Dist.] Jan. 23, 2018, no pet. h.). "Intent," as defined by the Restatement (Second) of Torts and adopted by the Supreme Court of Texas, means "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989) (quoting Restatement (Second) of Torts § 8A (1965)). In Reed Tool v. Copelin, the supreme court held that the "intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury." 689 S.W.2d 404, 407 (Tex. 1985). The court explained that the following types of conduct did not rise to the level of intentional injury: (1) intentional failure to provide a safe workplace; (2) intentional modification or removal of safety controls or guards; (3) intentional violation of a safety regulation; (4) intentional failure to train an employee to perform a dangerous task; or (5) requiring an employee to work long hours. Id. at 406-07. The court pointed out that "while these results may seem harsh, . . . it is not the gravity or depravity of the employer's conduct but rather the narrow issue of intentional versus accidental quality of the injury." Id. at 407.
In his intentional-tort claim, Simon sought relief from appellees for intentionally causing him injury. He argued that appellees intentionally required him to come into contact continuously with a dangerous toxic mold, although they knew he was not supposed to come in contact with it and would be harmed if he did. In their respective no-evidence motions for summary judgment, each appellee argued that Simon failed to provide any evidence that either employer intended to injure him or knew that he was substantially certain to be injured from unloading the crates he alleges contained mold. Thus, the burden was on Simon to produce more than a scintilla of evidence to raise a genuine issue of material fact as to the element of intent. Mack Trucks, 206 S.W.3d at 582; Dworschak, 352 S.W.3d at 196.
In response to appellees' motions for summary judgment on his intentional-tort claim, Simon attached the same unobjected-to evidence discussed in the previous section: his medical records from the time; Spencer Robertson's affidavit; his own affidavit; and Cheryl Davis's affidavit. Based on a review of this evidence under the intentional-injury standard discussed above, we hold that Simon failed to meet his burden of showing more than a scintilla of evidence as to the element of intent.
Simon argues that his medical reports show appellees knew of his rash, which was diagnosed in May 2013, as contact dermatitis and other eczema from an unspecified cause. Simon also contends that appellees knew he was instructed to avoid the substance on the crates. Although Cheryl Davis's affidavit provides evidence that both appellees knew of the incident, Simon presented no evidence showing that appellees knew Simon was instructed to avoid the crates. Simon's summary judgment evidence revealed that Simon was put on restricted duty by the assigning physician, but only with regard to avoiding "contact with other people until all rashes are dry [sic] and no more new rash[es] appear."
Simon next asserts that appellees instructed him to continue working with the crates even though appellees knew or should have known that future contact with the same molded substance would further injure him. Simon did not present evidence to support this assertion. No evidence in the record indicates that Simon continued to suffer or seek medical help in regard to his dermatitis and eczema. The only mention of hospitalization comes from Simon's "subjective complaints" listed on his status report in November 2013; the report states that the patient said "he had a severe infection in [S]eptember, was hospitalized, and then had iv antibiotics for a long time. The specialist released him." Simon provided no evidence linking the hospitalization to his exposure to the molded crates. Simon did include medical records showing he received treatment into September and November, but the record reveals that these medical visits pertained to an "insect sting nonvenomous of elbow forearm and wrist without infection."
The accompanying affidavits do not provide any more support for Simon's contentions that appellees knew or were substantially certain he would be harmed from continuing to work with the crates. Spencer Robertson, Simon's co-worker, testified that they did work with molded crates, and as a result Robertson's allergies were affected and several employees—himself included—complained to the supervisor. In Simon's own affidavit, he testified that he requested protective gear for working with the molded substance, but his "complaints and requests went unheard." Cheryl Davis testified in her affidavit that she and Pentair received notification about Simon's skin rash from Simon himself, who explained the rash was caused by "contact with contaminated crates at Pentair's warehouse." Davis also wrote that Simon was placed on workers' compensation leave for this skin rash, and that after he was cleared to return to work, Simon returned to the same position of unloading crates.
None of this evidence shows the intent element required for an intentional-tort claim. More than "the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty." Reed Tool, 689 S.W.2d at 406 (quotations omitted). The record does not contain more than a scintilla of evidence that appellees knew for certain Simon would be harmed by continuing to work with the crates. Moreover, no evidence suggests that Simon even continued to suffer from working with the crates. To the contrary, Simon's own evidence suggests that he healed from his earlier dermatitis episode and suffered later from an insect sting. Accordingly, we hold the evidence presented was insufficient to raise a genuine issue of material fact on the requisite element of intent. Therefore, the trial court properly granted no-evidence summary judgment to appellees on Simon's intentional-tort claim. We overrule Simon's second issue.
CONCLUSION
Having overruled Simon's two issues on appeal, we affirm the trial court's judgment.
/s/ J. Brett Busby
Justice Panel consists of Chief Justice Frost and Justices Jamison and Busby.